1:25-cv-01968•Williams v. Kelsey
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------X CHRISTINA WILLIAMS, REPORT AND RECOMMENDATION 25-CV-1968 (LDH) (TAM) Plaintiff, -against- SHIRROD K. KELSEY, Defendant. ----------------------------------------------------------X TARYN A. MERKL, United States Magistrate Judge: Christina Williams (“Plaintiff”) initiated this action against Shirrod K. Kelsey (“Defendant”) on April 9, 2025. See Compl., ECF 1. Plaintiff brings numerous claims against Defendant, including a violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Additionally, Plaintiff alleges tort claims for defamation (libel and slander); public disclosure of private facts; invasion of privacy; conversion; intentional infliction of emotional distress (“IIED”); and tortious interference with employment. Currently pending before the Court is Plaintiff’s motion for default judgment against Defendant, which the Honorable LaShann DeArcy Hall referred to the undersigned Magistrate Judge for a report and recommendation. See Clerk’s Entry of Default, ECF 8; Pl.’s Mot. for Default J. (“Mot.”), ECF 9; June 10, 2025 ECF Order Referring Mot. For the reasons set forth below, the Court respectfully recommends denying Plaintiff’s default motion and giving Plaintiff leave to amend her complaint. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 1 of 34 PageID #: <pageID>
2 FACTUAL BACKGROUND AND PROCEDURAL HISTORY I. Factual Background1 Plaintiff Christina Williams is an employee of Delta Airlines. Compl., ECF 1, ¶ 4. She also operates a notary business. Id. ¶ 5. Plaintiff was in a relationship with Defendant Shirrod K. Kelsey. Id. ¶ 7. During the relationship, Plaintiff alleges that “Defendant gained access to Plaintiff’s personal iPad and Delta Airlines work account.” Id. ¶ 8. After obtaining this access, Defendant, “[w]ithout Plaintiff’s knowledge or authorization,” accessed her Delta account and sent “updated login credentials to himself.” Id. ¶ 9. Moreover, Plaintiff entrusted Defendant with her notary stamp; Defendant did not return the stamp, and she “was forced to report the stamp stolen due to concerns that he may use it unlawfully.” Id. ¶ 10. Due to the alleged theft of the notary stamp, Plaintiff’s notary business suffered — she has lost both clients and income. Id. ¶ 11. Additionally, Plaintiff asserts that Defendant has “engaged in a campaign of harassment against Plaintiff,” including: (1) “[p]ublishing private text messages out of context”; (2) “[a]ppearing in video interviews to distort Plaintiff’s character and make defamatory claims”; (3) “[e]ncouraging others to call Plaintiff’s workplace and leave malicious messages on Delta’s employee tip line”; and (4) “[a]ttempting to damage her professional reputation.” Id. ¶ 12. Plaintiff further represents that “Defendant’s conduct has extended into deeply personal territory, including efforts to destabilize Plaintiff’s 1 The Court recites the facts as alleged in the complaint. See, e.g., Mikhlin v. Oasmia Pharm. AB, No. 19-CV-4349 (NGG) (RER), 2021 WL 1259559, at *1 (E.D.N.Y. Jan. 6, 2021). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 2 of 34 PageID #: <pageID>
3 emotional wellbeing during an ongoing IVF treatment cycle.” Id. ¶ 13. Plaintiff avers that the stress and psychological trauma of Defendant’s actions not only may jeopardize her IVF treatment but have also taken a toll on her emotional and mental health and caused reputational harm, including “scrutiny at her workplace” and disruption of her notary business. Id. ¶¶ 14–15. Plaintiff asserts she has “retained legal counsel and PR advisors to manage the fallout and protect her interests.” Id. ¶ 16. II. Procedural History As noted above, Plaintiff filed her complaint, pro se, on April 9, 2025. See generally id. On that same day, summons was issued to Defendant Kelsey. See Summons Issued, ECF 4. On May 7, 2025, summons to Defendant was returned executed, indicating that Defendant was served on April 12, 2025, rendering his answer due by May 5, 2025. See Proof of Service, ECF 6. Defendant did not answer the complaint. See generally Docket. On May 9, 2025, Plaintiff submitted her request for a certificate of default against Defendant, which was entered by the Clerk of Court on May 13, 2025. See Req. for Certificate of Default, ECF 7; May 13, 2025 Clerk’s Entry of Default. On May 22, 2025, Plaintiff filed her motion for default judgment, which Judge DeArcy Hall referred to the undersigned Magistrate Judge on June 10, 2025. Mot., ECF 9; June 10, 2025 ECF Order Referring Mot. On August 18, 2025, the undersigned scheduled a default motion hearing for September 18, 2025, noted that Defendant Kelsey could participate in the conference, and directed the Clerk of Court to send a copy of the notice and scheduling order to Defendant. See Aug. 18, 2025 ECF Scheduling Order; Notice to Def., ECF 10. The Court also noted that the filings on the docket did not indicate that Defendant was served the Clerk’s Certificate of Default, as required by E.D.N.Y. Local Civil Rule 55.2(a)(3). See Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 3 of 34 PageID #: <pageID>
4 Aug. 18, 2025 ECF Scheduling Order. Accordingly, the Court directed Plaintiff to demonstrate compliance with the rule. Id. The Court further directed Plaintiff to file an affidavit or declaration pursuant to E.D.N.Y. Local Rule 55.2(a)(1)(B), indicating her compliance with both “(1) Local Civil Rule 55.2(a)(1)(C), which requires that Plaintiff file an affidavit or declaration showing that ‘the party against whom judgment is sought it not known to be a minor or incompetent person,’ and (2) the Servicemembers’ Civil Relief Act (‘SCRA’).’” Id. (quoting Lopez v. Metro & Graham LLC, No. 22-CV-0332 (CBA) (RER), 2022 WL 18809176, at *5 (E.D.N.Y. Dec. 16, 2022), report and recommendation adopted, 2023 WL 2140418 (E.D.N.Y. Feb. 21, 2023)). On September 8, 2025, Plaintiff filed a declaration with the requested information. See Williams Decl., ECF 11. At the default motion hearing on September 18, 2025, Defendant appeared pro se, along with Plaintiff. See Sept. 18, 2025 ECF Min. Entry & Order. Plaintiff expressed her intent to move forward with the default motion, and Defendant expressed an interest in defending the case. See id. The Court directed Defendant Kelsey to either have counsel enter their appearance on his behalf, or to send a letter to the E.D.N.Y. Pro Se Office indicating his intent to proceed pro se by October 10, 2025. See id. On September 24, 2025, Defendant provided a letter to the E.D.N.Y. Pro Se Office, informing the Court of his intention to proceed pro se. See Def.’s Letter, ECF 13. The Court then directed Defendant to file a response to Plaintiff’s motion for a default judgment by October 24, 2025, and notified Plaintiff that she may file a reply by November 7, 2025. See Oct. 3, 2025 ECF Scheduling Order. The Court also set a status conference for November 17, 2025. See id. On October 20, 2025, Defendant’s response to Plaintiff’s default motion was filed. See Def.’s Resp., ECF 14. In the response, Defendant asserted he is “a 100% disabled Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 4 of 34 PageID #: <pageID>
5 United States military veteran who suffers from a seizure disorder that affects my memory and cognitive function.” Id. at ECF p. 1. He maintained that on the morning he received the summons in this matter, he “experienced a seizure episode that resulted in confusion and memory loss,” leaving him “disoriented and unable to fully comprehend the nature of the legal documents” he had received for several days. Id. He went on to assert that with the help of his personal aide, he was able to review and understand the summons and was “under stable medical care.” Id. at ECF p. 2. He maintained that he is taking seizure medication and is “capable of proceeding with this case responsibly,” requesting that the Court deny Plaintiff’s motion for default judgment, and allowing him the opportunity to file an answer in response to the complaint to defend the case on the merits. Id. Plaintiff then filed her reply. See Pl.’s Reply, ECF 15. Plaintiff argued, inter alia, that Defendant’s letter offered “only a personal explanation for missing deadlines and a request for leniency” but did not “not cite a single rule, standard, or authority addressing the default criteria . . . nor does it rebut the sufficiency of Plaintiff[’]s” claims. Id. at ECF p. 2. Plaintiff asserted that, therefore, Defendant did not “establish ‘good cause’ to set aside default.” Id. At the status conference on November 17, 2025, both Plaintiff and Defendant appeared pro se. See Nov. 17, 2025 ECF Min. Entry & Order. Defendant expressed his desire to provide additional information regarding his medical records in support of his response to Plaintiff’s default motion. Id. The Court directed Defendant to file a supplemental response to Plaintiff’s motion for default judgment by December 1, 2025, including any documentation he seeks to submit regarding his medical visits and treatment in the months following the filing of the complaint, or any evidence he wishes Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 5 of 34 PageID #: <pageID>
6 the Court to consider pertaining to his failure to appear in this case after being personally served. Id. The Court further noted that following receipt of this supplemental filing, the Court would take the motion for default under advisement. Id. Defendant did not file the supplemental response by the designated deadline. See generally Docket. For the reasons set forth below, the Court respectfully recommends that the motion for default judgment be denied, and that Plaintiff be given leave to amend her complaint. DISCUSSION I. Default Standard Federal Rule of Civil Procedure 55 provides a “two-step process” for obtaining a default judgment. Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The plaintiff must first obtain an entry of default when a defendant “has failed to plead or otherwise defend” in an action. Fed. R. Civ. P. 55(a). Second, after the certificate of default is entered, and on the plaintiff’s application, the district court may then enter a default judgment. Fed. R. Civ. P. 55(a)–(b); see also E.D.N.Y. Loc. Civ. R. 55.2(b). A “plaintiff is not entitled to a default judgment as a matter of right simply because a party is in default.” Finkel v. Universal Elec. Corp. (“Universal Elec.”), 970 F. Supp. 2d 108, 118 (E.D.N.Y. 2013). Rather, the decision to grant a motion for default judgment is “left to the sound discretion of [the] district court because it is in the best position to assess Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 6 of 34 PageID #: <pageID>
7 the individual circumstances of a given case and to evaluate the credibility and good faith of the parties.”2 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). The district court must also determine whether the plaintiff’s “allegations establish [the defendant’s] liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). In making this determination, the “court is required to accept all of the . . . factual allegations as true and draw all reasonable inferences in [the plaintiff’s] favor.” Id. It is “the plaintiff’s burden to demonstrate that those uncontroverted allegations, without more, establish the defendant’s liability on each asserted cause of action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012). Moreover, while a default constitutes an admission of liability as to well-pleaded allegations, a default is “not considered an admission of damages.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Here, too, the “[p]laintiff bears the burden of presenting proof of damages, which may take the form of documentary evidence or detailed affidavits.” J & J Sports Prods., Inc. v. Ahuachapan Corp., 422 F. Supp. 3d 652, 663 (E.D.N.Y. 2019) (citing CIT Bank, 2 A plaintiff must also establish compliance with the procedural requirements of E.D.N.Y. Local Civil Rules 7.1, 55.1, and 55.2. Having carefully reviewed the filings in this case, the Court finds that Plaintiff’s motion papers comport with these rules. First, Plaintiff requested a certificate of default in accordance with Local Rule 55.1(a)(1), which was served on Defendant via mail and email. See Req. for Certificate of Default, ECF 7; Williams Decl., ECF 11. Second, Plaintiff has demonstrated that Defendant has failed to defend the action and that the pleadings were properly served. See Proof of Service, ECF 6 (establishing personal service on Defendant); Williams Decl., ECF 11, ¶¶ 2, 3 (stating that Defendant is not a minor, incompetent, or engaged in active military service). Third, Plaintiff has certified the mailing of all of the default motion papers to Defendant’s last known address, in accordance with Local Rule 55.2(a)(3). See Certificate of Service, ECF 9-4; Aff. of Service, ECF 12. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 7 of 34 PageID #: <pageID>
8 N.A. v. Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *5 (E.D.N.Y. Sept. 25, 2015); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991)); see also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (explaining that courts can assess damages based on “‘detailed affidavits and documentary evidence’” (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). In the default posture, the moving party is “entitled to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Additionally, “[i]t is well established that a court is ordinarily obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Pro se complaints, in particular, “‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). The Court is therefore required to interpret the submissions of a pro se litigant “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation marks omitted). Nevertheless, the “special solicitude in pro se cases . . . has its limits.” Liverpool v. City of New York, No. 19-CV-5527 (JGK), 2020 WL 5995028, at *1 (S.D.N.Y. Oct. 9, 2020) (citation and quotation marks omitted). Importantly, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted). To state a claim that complies with Rule 8 of the Federal Rule of Civil Procedure, pro se pleadings must “make a short and plain statement showing that the pleader is entitled to relief.” Liverpool, 2020 WL 5995028, at *1; see Fed. R. Civ. P. 8(a). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 8 of 34 PageID #: <pageID>
9 II. Default Analysis A. Entry of Default In determining whether a defendant’s conduct warrants entry of a default judgment, courts apply the same factors applicable to a motion to set aside entry of a default. See Enron Oil, 10 F.3d at 96 (noting that “the factors examined in deciding whether to set aside a default or a default judgment are the same”). These factors include “1) whether the defendant’s default was willful; 2) whether [the] defendant has a meritorious defense to [the] plaintiff’s claims; and 3) the level of prejudice the non- defaulting party would suffer as a result of the denial of the motion for default judgment.” Mason Tenders Dist. Council v. Duce Constr. Corp. (“Duce Constr. Corp.”), No. 02-CV-9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Enron Oil, 10 F.3d at 96. “Other relevant equitable factors may also be considered, for instance, whether the failure to follow a rule of procedure was a mistake made in good faith and whether the entry of default would bring about a harsh or unfair result.” Enron Oil, 10 F.3d at 96. In this case, the Court concludes that entry of a default is appropriate. 1. Willfulness In the context of default, willfulness “refer[s] to conduct that is more than merely negligent or careless.” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). That said, a defendant’s “failure to respond to a complaint evinces willful default.” Antoine v. Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 80 (E.D.N.Y. 2020) (citing McNulty, 137 F.3d at 738–39). Willfulness may also be presumed where, in addition to being properly served with the complaint, the defendant is notified of court proceedings and yet fails Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 9 of 34 PageID #: <pageID>
10 to respond. See, e.g., United States v. DiPaolo, 466 F. Supp. 2d 476, 482 (S.D.N.Y. 2006); Antoine, 489 F. Supp. 3d at 81. Defendant’s failure to substantively respond to this action supports a finding of willfulness. The Court notes that Plaintiff adequately served Defendant by delivering the summons and complaint directly on Defendant, as permitted by Florida law.3 See Fed. R. Civ. P. 4(e)(1) (establishing that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state . . . where service is made”); Fla. Stat. Ann. § 48.031(1)(a) (“Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper[.]”); Proof of Service, ECF 6; see also Fed. R. Civ. P. 4(c)(1), (2); Req. for Certificate of Default, ECF 7, at ECF p. 1; Clerk’s Entry of Default, ECF 8; cf. Am. Dev. Group, LLC v. Island Robots of Fla., No. 17-CV-3223 (NGG) (PK), 2019 WL 5790265, at *5 (E.D.N.Y. Oct. 4, 2019) (describing service of Florida defendants), report and recommendation adopted, 2019 WL 5788319 (E.D.N.Y. Nov. 6, 2019). Defendant failed to respond within 21 days of service. See Proof of Service, ECF 6. Defendant himself has acknowledged his “delay in responding to the complaint in a timely manner.” Def.’s Resp., ECF 14, at ECF p. 1. Although Defendant briefly appeared pro se following notice of the default motion, he never formally responded to the complaint, and ceased appearing before this Court altogether after the Court’s November 17, 2025 status conference. Compare Sept. 18, 2025 ECF Min. Entry & Order; Def.’s Letter, ECF 13; Def.’s Resp., ECF 14; Nov. 3 The complaint alleges that “Defendant Shirrod K. Kelsey is a resident of the State of Florida.” Compl., ECF 1, ¶ 6. Defendant also provided the Court with a Florida address during his brief appearance in the matter. See Def.’s Letter, ECF 13. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 10 of 34 PageID #: <pageID>
11 17, 2025 ECF Min. Entry & Order, with Pl.’s Notice, ECF 16; see also Chudomel v. Dynamic Recovery Servs., Inc., No. 12-CV-5365 (NGG) (RLM), 2013 WL 5970613, at *4 (E.D.N.Y. Nov. 8, 2013) (finding that the defendant’s default was willful when the defendant “abandon[ed] its short-lived defense of this action”). Defendant also failed to provide a supplemental response to Plaintiff’s default motion by the date this Court set. See Nov. 17, 2025 ECF Min. Entry & Order; Pl.’s Notice, ECF 16. In light of Defendant’s failure to respond as directed by the Court, despite being provided more than sufficient notice of this proceeding, the Court weighs this factor in favor of default. 2. Meritorious Defense “To satisfy the criterion of a ‘meritorious defense,’ the defense need not be ultimately persuasive at this stage.” Am. All. Ins. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996). Rather, “‘[a] defense is meritorious if it is good at law so as to give the factfinder some determination to make.’” Id. (quoting Anilina Fabrique de Colorants v. Aakash Chems. & Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). Here, although Defendant appeared briefly and signaled his intent to defend the litigation, Defendant has entirely failed to respond to the complaint. See generally Docket. In such instances, courts are usually “unable to make a determination [of] whether the defendant has a meritorious defense.” Joseph v. HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013). However, as discussed below, the Court’s has concerns regarding subject matter jurisdiction, personal jurisdiction, and the lack of details provided in the complaint. Accordingly, in light of the Court’s reservations, the Court finds that even though Defendant has not Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 11 of 34 PageID #: <pageID>
12 responded to the complaint, this factor weighs only slightly in favor of entry of a default. 3. Prejudice “The final factor the Court must consider is whether the non-defaulting parties would be prejudiced if the motion for default were to be denied.” Id. at 148. Denying a motion for default is prejudicial to the plaintiff where “‘there are no additional steps available to secure relief.’” Id. (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008)). In light of Defendant’s failure to substantively respond to both Plaintiff’s and the Court’s notices, “there is no indication that requiring Plaintiff[] to take further steps . . . would be effective in eliciting a response from Defendant[].” Duce Constr. Corp., 2003 WL 1960584, at *3. The Court therefore finds that Plaintiff would be unfairly prejudiced by denial of an entry of default. Accordingly, all three factors weigh in favor of entering a default. III. Liability Even though a balancing of the above factors tips somewhat in favor of an entry of default, Plaintiff has not adequately alleged Defendant’s liability in this matter as to the majority of her claims. The complaint alleged seven causes of action. See Compl., ECF 1, ¶¶ 17–36. These claims include: (1) defamation (libel and slander); (2) public disclosure of private facts; (3) invasion of privacy; (4) violation of the CFAA; (5) conversion; (6) IIED; and (7) tortious interference with employment. See id. As Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 12 of 34 PageID #: <pageID>
13 discussed below, this Court respectfully recommends finding that Plaintiff has not adequately pled her claims, but should be granted leave to amend.4 A. CFAA The Court addresses the CFAA claim first, as it forms the basis for Plaintiff’s invocation of federal question jurisdiction. The CFAA is “aimed at preventing the typical consequences of hacking.” Van Buren v. United States, 593 U.S. 374, 392 (2021) (quotation marks omitted). Under the CFAA, an individual who “intentionally accesses a protected computer without authorization” or “exceeds authorized access” and 4 The Court also notes general concerns with Plaintiff’s claims as pled in the complaint. For one, the complaint fails to allege any dates in connection with Defendant’s alleged actions or Plaintiff’s alleged harms. Accordingly, the Court is unable to consider whether the statute of limitations has run as to any of Plaintiff’s claims. See generally Compl., ECF 1. The Court notes, for example, that 18 U.S.C. § 1030(g) expressly disallows any action under that subsection “unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage.” 18 U.S.C. § 1030(g). This prohibition on bringing suit after two years raises questions, including whether Defendant may have a meritorious defense to the CFAA claim, considering the lack of any dates provided in the complaint related to Plaintiff’s alleged harms under this statute. See id.; see generally Compl., ECF 1; cf. Sewell v. Bernardin, 795 F.3d 337, 340 (2d Cir. 2015) (finding that the CFAA’s two-year statute of limitations began to run from the time of the plaintiff’s discovery of the alleged violation). Additionally, the Court notes that the complaint fails to state with any particularity the content of the allegedly harmful statements made by Defendant that undergird the majority of her claims. See Compl., ECF 1, ¶¶ 12, 13, 18, 21, 35. As discussed in more depth below, without additional context, the majority of Plaintiff’s claims do not provide sufficient facts to state a claim for relief and are not adequately pled. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, the complaint makes a conclusory statement that “[v]enue is proper in this district under 28 U.S.C. § 1391(b) as a substantial part of the events giving rise to the claims occurred in this district.” Compl., ECF 1, ¶ 3; see 28 U.S.C. § 1391(b)(2) (“A civil action may be brought in . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated[.]”). However, none of Plaintiff’s factual allegations indicate the location where Defendant’s alleged actions took place. See generally Compl., ECF 1. Accordingly, the Court is unable to evaluate whether venue is proper in this District or whether venue would be more appropriate in “a judicial district in which [the] defendant resides.” 28 U.S.C. § 1391(b)(1). The lack of non-conclusory allegations regarding venue are particularly problematic as to the defamation claim, as discussed below in Section B(1). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 13 of 34 PageID #: <pageID>
14 thereafter carries out a prohibited action set forth in the statute may be subject to criminal liability. See 18 U.S.C. § 1030(a)(1)–(7), (c). Although the CFAA is “predominantly a criminal statute,” it “also permits an individual who suffers damage or loss as defined in the statute to bring a civil action for damages or injunctive relief against the violator.” Koziar v. Blammo, Ltd., 759 F. Supp. 3d 543, 550 (S.D.N.Y. 2024) (citing 18 U.S.C. § 1030(g)). Under the CFAA, a civil action may be brought only if certain conditions are met. As relevant here, a civil plaintiff may bring a CFAA claim if the violation of the “protected computer” “caused” a “loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value.” 18 U.S.C. § 1030(g), (c)(4)(A)(i)(1)5; see BMaddox Enters., LLC v. Milad Oskouie, Osko M Ltd., No. 17-CV-1889 (RA), 2021 WL 3675072, at *11 (S.D.N.Y. Aug. 18, 2021). The CFAA defines “protected computer” as a computer “used in or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2)(B). “Courts have found that computers used to conduct business across state lines qualify as ‘protected.’” LawClick LLC v. Reagan, No. 20-CV-1369 (JS) (SIL), 2021 WL 724920, at *3 (E.D.N.Y. Jan. 26, 2021), report and recommendation adopted, 2021 WL 722413 (E.D.N.Y. Feb. 24, 2021). 5 The Court notes that while Plaintiff does not specifically state any particular subsection of § 1030 as the basis of her CFAA claim, based upon the allegations in the complaint, only § 1030(c)(4)(A)(i)(I) appears to apply “because Plaintiff makes no allegations concerning: medical diagnosis, examination, treatment, or care; physical injury; a threat to public health or safety; or damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security.” JM Huntington Motors, LLC v. Kavalerchik, No. 20-CV-1282 (JS) (ST), 2021 WL 982746, at *3 n.1 (E.D.N.Y. Feb. 19, 2021) (citing 18 U.S.C. § 1030(c)(4)(A)(i)(II)–(V)), report and recommendation adopted, 2021 WL 980551 (E.D.N.Y. Mar. 16, 2021). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 14 of 34 PageID #: <pageID>
15 Here, as a threshold matter, Plaintiff has not alleged any facts from which to infer that her personal iPad is a “protected computer” as defined by the statute that is “used in or affecting interstate or foreign commerce or communication.” Id. (quotation marks omitted). Rather, the complaint simply asserts that “Defendant gained access to Plaintiff’s personal iPad and Delta Airlines work account” and sent “updated login credentials to himself.” Compl., ECF 1, ¶¶ 8, 9. Plaintiff does not specify that the computer was used in or affecting interstate or foreign commerce or communication; it is also not specified in the complaint how the Defendant is alleged to have sent himself the updated login information such that Plaintiff has alleged non-conclusory facts to establish that the computer was used for interstate communication. The Court is of course cognizant that “‘[e]ffectively all computers with Internet access’ are used in or affecting interstate or foreign commerce or communication.” Microsoft Corp. v. Does 1-2, No. 20-CV-1217 (LDH) (RER), 2021 WL 4755518, at *7 (E.D.N.Y. May 28, 2021) (quoting United States v. Valle, 807 F.3d 508, 528 (2d Cir. 2015) (internal quotation marks omitted)), report and recommendation adopted, 2021 WL 4260665 (E.D.N.Y. Sept. 20, 2021). But that recognition does not excuse a plaintiff alleging a claim under the CFAA from stating particularized, non-conclusory facts to illustrate their claim. See Fed. R. Civ. P. 8. Even accepting that Plaintiff’s computer qualifies as a protected computer, Plaintiff has not pleaded the requisite losses. Plaintiff has not alleged facts to show that she has suffered a loss caused by the unauthorized use “during any 1-year period . . . aggregating at least $5,000 in value.” 18 U.S.C. §§ 1030(g), 1030(c)(4)(A)(i)(I). As the Court observed in footnote 4, supra, the complaint contains no dates. See generally Compl., ECF 1. Therefore, the Court is unable to determine whether Plaintiff suffered losses “during any 1-year period.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Moreover, the Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 15 of 34 PageID #: <pageID>
16 complaint does not identify specific monetary losses caused by the alleged computer access, while the statute is explicitly limited to economic damages. Id. § 1030(g); see generally Compl., ECF 1; cf. Pl.’s Notice, ECF 16, at ECF pp. 5–6 (alleging various losses, without providing a time period or specifying what losses are attributable to Defendant’s unauthorized access to Plaintiff’s computer or how such access caused economic damages). Accordingly, the Court respectfully recommends dismissal of Plaintiff’s CFAA claim. B. Defamation (Libel and Slander) 1. Personal Jurisdiction As a threshold matter, the Court has concerns regarding personal jurisdiction over Defendant Kelsey for the purposes of Plaintiff’s defamation claim. “[B]efore a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant[.]” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010).6 The Court notes that in claiming personal jurisdiction over Defendant, Plaintiff simply states that “Defendant Shirrod K. Kelsey is a resident of the State of Florida, and is subject to personal jurisdiction in this District by virtue of his intentional acts directed toward Plaintiff in New York.” Compl., ECF 1, ¶ 6. These intentional acts include a number of allegedly defamatory statements, see Compl., ECF 6 The Court further notes that “[a] default judgment is void if it is rendered by a court that lacks jurisdiction over the parties.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011) (quotation marks omitted). Accordingly, personal jurisdiction “should be examined on a motion for a default judgment when a plaintiff’s submissions clearly show an absence of personal jurisdiction or even when they show that sustaining personal jurisdiction is highly unlikely.” Kaplan v. Hezbollah, No. 19-CV-3187 (BMC), 2022 WL 2207263, at *2 (E.D.N.Y. June 21, 2022). Here, Plaintiff’s papers raise questions regarding this Court’s jurisdiction over Defendant Kelsey. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 16 of 34 PageID #: <pageID>
17 1, ¶ 12, which form the basis of Plaintiff’s defamation claim, her public disclosure of private facts claim, her tortious interference with employment claim, and, arguably, her IIED claim, see id. ¶¶ 17–19, 20–22, 31–33, 34–36. However, “[i]n light of the First Amendment interests implicated by claims — however styled — that sound in defamation or libel, such claims are subject to a higher jurisdictional bar in New York.” Giannetta v. Johnson, No. 20-CV-9016 (PAE), 2021 WL 2593305, at *7 (S.D.N.Y. June 24, 2021) (citing N.Y. C.P.L.R. § 302(a)(2)–(3) (expressly excluding “cause[s] of action for defamation of character arising from the act” as claims over which New York courts have personal jurisdiction over non-domiciliaries)); see id. at *9 (“[I]t is well-established that Plaintiffs cannot evade [the bar to defamation claims] by recasting their defamation claims as other torts.” (quotation marks omitted)) (collecting cases). “‘Defamation claims are accorded separate treatment to reflect the state’s policy of preventing disproportionate restrictions on freedom of expression.’” Id. (quoting SPCA of Upstate N.Y., Inc. v. Am. Working Collie Ass’n, 18 N.Y.3d 400, 404 (2012)). In considering personal jurisdiction, the Court looks to New York’s long-arm statute, N.Y. C.P.L.R. § 302(a); see also Fed. R. Civ. P. 4(k)(1)(A) (personal jurisdiction is limited to those who are “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located”). Specifically, Section 302(a) of the New York C.P.L.R. states: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 17 of 34 PageID #: <pageID>
18 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state. N.Y. C.P.L.R. § 302(a). “Under New York law, when a person utters a defamatory statement without the state that causes injury to the plaintiff within the state,” then “jurisdiction may be acquired under section 302(a)(1), even though section 302(a)(3) — which explicitly concerns jurisdiction as to out-of-state tortious acts that cause in-state injury — excludes defamation cases from its scope.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 245–46 (2d Cir. 2007). “To establish personal jurisdiction under CPLR § 302(a)(1), two requirements must be met: (1) the defendant must have transacted business within the state; and (2) there must be ‘some articulable nexus between the business transacted and the cause of action sued upon.’” Giannetta, 2021 WL 2593305, at *8 (quoting McGowan v. Smith, 52 N.Y.2d 268, 272 (1981)). For defamation cases, the “single act of uttering a defamation, no matter how loudly, is not a transaction of business that may provide the foundation for personal jurisdiction.” Best Van Lines, 490 F.3d at 248 (quotation marks and alteration omitted). Moreover, “‘New York case law establishes that making defamatory statements outside of New York about New York residents does not, without more, Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 18 of 34 PageID #: <pageID>
19 provide a basis for jurisdiction, even when those statements are published in media accessible to New York readers,’ such as a website.” Giannetta, 2021 WL 2593305, at *9 (quoting Best Van Lines, 490 F.3d at 253). “Nor is posting an allegedly defamatory comment on an interactive website sufficient.” Id. (citing Best Van Lines, 490 F.3d at 254). Here, Plaintiff has not pled sufficient facts from which to determine whether the requisite standard has been met. See Compl., ECF 1, ¶ 12 (generally stating that Defendant has “engaged in a campaign of harassment against Plaintiff,” including by publishing text messages and appearing in videos, without specifying where these statements were made, what the content of these statements were, or who accessed these statements). 2. Analysis of Liability “‘Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name.’” Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001) (quoting Hogan v. Herald Co., 446 N.Y.S.2d 836, 839 (App. Div. 4th Dep’t), aff’d on op. below, 58 N.Y.2d 630 (1982)); see YCF Trading Inc. v. Skullcandy, Inc., 781 F. Supp. 3d 56, 75 (E.D.N.Y. 2025). In general, defamatory words that are spoken are considered slander while defamatory words that are written are considered libel. Albert, 239 F.3d at 265. “‘Under New York law[,] a defamation plaintiff must establish five elements: (1) a . . . defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.’” Carroll v. Trump, 124 F.4th 140, 159 n.9 (2d Cir. 2024) (quoting Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)); see also Cicel (Beijing) Sci. & Tech. Co. v. Misonix, Inc., No. 22-1834-cv, 2024 WL 959619, at *4 (2d Cir. Mar. 6, 2024) (summary order); Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 19 of 34 PageID #: <pageID>
20 New York courts have defined a defamatory statement as one that “‘tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [them] in the minds of right-thinking persons, and . . . deprive[s] [them] of their friendly intercourse in society.’” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Stepanov v. Dow Jones & Co., 987 N.Y.S.2d 37, 41 (App. Div. 1st Dep’t 2014) (internal quotation marks omitted)); see also Celle, 209 F.3d at 177. Importantly, the defamatory statement at issue must express an assertion of fact rather than one of opinion. “Under New York law, pure opinion . . . is not actionable because expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.” Ratajack v. Brewster Fire Dep’t, Inc. of the Brewster-Se. Joint Fire Dist., 178 F. Supp. 3d 118, 158 (S.D.N.Y. 2016) (cleaned up). “Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean.” Davis v. Boeheim, 24 N.Y.3d 262, 269 (2014) (quotation marks omitted). When asserting a defamation claim, the clock begins to run for the purposes of the statute of limitations from the date that the alleged statement was made or published.7 See Karam v. First Am. Bank of N.Y., 593 N.Y.S.2d 640, 642 (App. Div. 4th Dep’t 1993); Nussenzweig v. diCorcia, 9 N.Y.3d 184, 188 (2007); see also N.Y. C.P.L.R. § 215(3) (one year statute of limitations for defamation). Additionally, “the mode of pleading defamation is governed by [Federal Rule of Civil Procedure 8].” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). Pursuant to the 7 As discussed in footnote 4, supra, the Court has questions regarding evaluating the statute of limitations for Plaintiff’s claims and whether Defendant, in this default context, may have a meritorious defense to untimely claims. See Enron Oil, 96 F.3d at 96. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 20 of 34 PageID #: <pageID>
21 liberal notice pleading standard set forth in Rule 8(a)(2), a complaint must include “‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002) (quoting Rule 8(a)(2)). Such a statement is one that “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 507. In the context of defamation claims, the “central concern” at the pleadings stage “is that the complaint ‘afford [the] defendant sufficient notice of the communications complained of to enable him to defend himself.’” Linell v. N.Y.C. Dep’t of Educ., No. 15-CV-5085 (CBA) (MDG), 2017 WL 880853, at *2 (E.D.N.Y. Mar. 3, 2017) (quoting Kelly, 806 F.2d at 46). “Although New York law requires defamation claims to be pleaded with particularity, that rule is procedural in nature, and thus does not apply to defamation claims brought in federal court.” Sebastiani v. Brooklyn Hosp. Ctr., No. 19-CV-0253 (PKC) (ST), 2019 WL 3281010, at *4 (E.D.N.Y. July 19, 2019). Rather, “a complaint alleging defamation is sufficient if it adequately identifies the purported communication and provides an indication of who made the communication, when it was made, and to whom it was communicated.” Id. (quotation marks omitted) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 271 (2d Cir. 1999) (“While plaintiffs are not required to plead defamation in haec verba, [an] unsupported claim that [the defendant] said ‘something bad’ about [the plaintiff] to a client fail[s] to afford [the defendant] sufficient notice of the communications complained of . . . .” (internal quotation marks omitted))). Here, Plaintiff fails to adequately plead a claim of defamation. In the complaint, Plaintiff simply asserts that Defendant has “engaged in a campaign of harassment against Plaintiff,” including “[p]ublishing private text messages out of context;” “[a]ppearing in video interviews to distort Plaintiff’s character and make defamatory Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 21 of 34 PageID #: <pageID>
22 claims;” “[e]ncouraging others to call Plaintiff’s workplace and leave malicious messages on Delta’s employee tip line;” and “[a]ttempting to damage her professional reputation.” Compl., ECF 1, ¶ 12. While Plaintiff appears to allege both slanderous and libelous statements, she has not pled any facts concerning the contents of these statements in her complaint. See generally Compl., ECF 1. Accordingly, Plaintiff has not pled her defamation claim with sufficient particularity to provide Defendant “sufficient notice of the communications complained of.” Kelly, 806 F.2d at 46; Sebastiani, 2019 WL 3281010, at *4. In evaluating whether a defamation claim has been pled “with sufficient particularity, [federal] courts look to whether [the] complaint references the alleged defamatory statement, identifies who made the statement, when it was made, the context in which it was made, whether it was made orally or in writing[,] and whether it was made to a third party.” Bloom v. Fox News of L.A., 528 F. Supp. 2d 69, 74 (E.D.N.Y. 2007) (quotation marks omitted). Additionally, “‘[t]o satisfy the publication element[,] [. . . ] [Plaintiff] must identify a third party to whom the defamatory statement was allegedly published.’” Sebastiani, 2019 WL 3281010, at *5 (quoting Shak v. Krum, No. 18- CV-1650 (LGS), 2018 WL 5831319, at *4 (S.D.N.Y. Nov. 6, 2018)). Here, the Court finds that Plaintiff’s defamation claim is not adequately pled as her allegations do not put Defendant on notice of his alleged defamatory statements. While Plaintiff’s allegations, taken as true, generally identify Defendant as the speaker of the allegedly defamatory statements, the complaint does not identify the content of the statements, when the statements were made, the context in which they were made, or the third party to which Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 22 of 34 PageID #: <pageID>
23 these statements were made.8 See, e.g., Compl., ECF 1, ¶¶ 12, 19 (“These statements were published online and in media interviews and caused Plaintiff reputational harm.”); see also Bloom, 528 F. Supp. 2d at 74; Sebastiani, 2019 WL 3281010, at *5 (“What is crucially lacking in Plaintiff's complaint, however, is identification of the third party to which the defamatory statements were made.” (emphasis in original)). Under the relevant pleading standard, “[t]he mere allegation that defamatory statements were made to another unidentified [party] is too indeterminate to provide sufficient notice of Plaintiff’s claim.” Sebastiani, 2019 WL 3281010, at *5. Moreover, the vague nature of Plaintiff’s pleading regarding her defamation allegations does not permit the Court to evaluate whether the statements made by Defendant are legally defamatory, rather than mere statements of opinion. Davis, 24 N.Y.3d at 269. For all these reasons, the Court respectfully recommends dismissing Plaintiff’s defamation claim. C. Invasion of Privacy and Public Disclosure of Private Facts Plaintiff also brings claims for invasion of privacy and public disclosure of private facts. See Compl., ECF 1, ¶¶ 20–24. With respect to invasion of privacy, “New York does not have a common law right to privacy.” Cavazzini v. MRS Assocs., 574 F. Supp. 3d 134, 141 (E.D.N.Y. 2021); see Devitt v. Portfolio Recovery Assocs., LLC, No. 21-CV- 8 The Court observes that Plaintiff does identify Delta as a third party insofar as she alleges that Defendant “encourage[ed] others to call Plaintiff’s workplace and leave malicious messages on Delta’s employee tip line.” Compl., ECF 1, ¶ 12. However, as stated above, this allegation is deficient as it does not identify when the alleged statements were made and further does not identify who made these statements as Defendant Kelsey is the only named Defendant. See Bloom v. Fox News of L.A., 528 F. Supp. 2d 69, 74 (E.D.N.Y. 2007). Additionally, while Plaintiff alleges that Defendant Kelsey “[e]ncourag[ed] others to call Plaintiff’s workplace,” Plaintiff does not allege particularized facts that anyone actually called. Compl., ECF 1, ¶ 12. In other words, the complaint does not allege that Delta in fact received any such calls, making them a third party to whom allegedly defamatory statements were made; nor is it clear who uttered any such statements to Delta. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 23 of 34 PageID #: <pageID>
24 5657 (ARR) (ARL), 2022 WL 1460278, at *6 (E.D.N.Y. May 9, 2022); see also Spitz v. Caine & Weiner Co., Inc., No. 23-CV-7853 (PKC) (CLP), 2024 WL 69089, at *5 (E.D.N.Y. Jan. 5, 2024). Accordingly, the Court respectfully recommends dismissing Plaintiff’s claim for invasion of privacy. Likewise, Plaintiff’s “public disclosure of private fact claim necessarily fails because New York common law does not recognize privacy torts such as public disclosure of private fact.” JPMorgan Chase Bank, N.A. v. Nowak (“Nowak”), No. 23-CV- 6834 (JPO), 2025 WL 1938541, at *7 (S.D.N.Y. July 15, 2025) (collecting cases); see Sweigert v. Goodman, No. 23-CV-5875 (JGK), 2024 WL 4493768, at *6 (S.D.N.Y. Oct. 11, 2024) (“Because there is no common-law privacy right under New York law, the plaintiff cannot state a claim for relief based on [the defendant’s] alleged public disclosure of private facts.”), reconsideration denied, 2024 WL 5047302 (S.D.N.Y. Dec. 9, 2024). “New York’s statutory privacy protections apply only to infringement on one’s privacy ‘for advertising, or for the purposes of trade.’” Nowak, 2025 WL 1938541, at *7 (quoting N.Y. Civ. Rts. L. § 50). Here, Plaintiff does not allege infringement on her privacy “for advertising, or for the purposes of trade.” N.Y. Civ. Rts. L. § 50. Rather, in her complaint, Plaintiff alleges that “Defendant publicized private facts about Plaintiff, including personal text messages and fertility treatments, which were not of legitimate public concern” and a “reasonable person would find such disclosure highly offensive.” Compl., ECF 1, ¶¶ 21–22. Regardless of whether such conduct was offensive, in the absence of a recognized privacy tort that would apply to such conduct, the Court respectfully recommends dismissing Plaintiff’s public disclosure of private facts claim. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 24 of 34 PageID #: <pageID>
25 D. Conversion “Under New York law, conversion is ‘the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights.’” City of Almaty v. Ablyazov, 278 F. Supp. 3d 776, 801 (S.D.N.Y. 2017) (quoting Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403–04 (2d Cir. 2006) (internal quotation marks omitted)); see V&A Collection, LLC v. Guzzini Props. Ltd., 46 F.4th 127, 133 (2d Cir. 2022) (noting that the “two key elements of conversion are (1) plaintiff’s possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights”); see also DeVito v. Neiman, 548 F. Supp. 3d 314, 317–18 (E.D.N.Y. 2021). To state a conversion claim, “a plaintiff must allege that (1) the party charged has acted without authorization, and (2) exercised dominion or a right of ownership over property belonging to another, (3) the rightful owner makes a demand for the property, and (4) the demand for the return is refused.” Lefkowitz v. Bank of New York, 676 F. Supp. 2d 229, 251 (S.D.N.Y. 2009) (quotation marks and alterations omitted). “Where the original possession is lawful, a conversion does not occur until the defendant refuses to return the property after a demand or until he sooner disposes of the property.” Ainbinder v. Money Ctr. Fin. Grp., Inc., No. 10-CV-5270 (SJF) (AKT), 2013 WL 1335997, at *9 (E.D.N.Y. Feb. 28, 2013) (quotation marks omitted), report and recommendation adopted, 2013 WL 1335893 (E.D.N.Y. Mar. 25, 2013). Here, Plaintiff asserts that she “entrusted Defendant with her notary stamp, which he failed to return.” Compl., ECF 1, ¶ 10; see id. ¶ 29 (“Defendant wrongfully retained Plaintiff’s notary stamp and has not returned it despite multiple requests.”). Plaintiff was then “forced to report the stamp stolen due to concerns that he may use it Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 25 of 34 PageID #: <pageID>
26 unlawfully.” Id. ¶ 10; see also id. ¶ 30. Defendant’s alleged failure to return the stamp resulted in harm to Plaintiff’s notary business, “including the loss of clients and income.” Id. ¶ 11. Taking Plaintiff’s allegations as true, Plaintiff has stated the very basic elements of a conversion claim. While Defendant’s initial possession of the notary stamp appears to have been lawful as Plaintiff asserts she “entrusted Defendant with her notary stamp,” Plaintiff alleges she has made a demand for the return of the property and Defendant has failed to comply. Compl., ECF 1, ¶ 10. Therefore, Plaintiff has alleged that Defendant “exercised dominion or a right of ownership over property” to the detriment of Plaintiff. Lefkowitz, 676 F. Supp.2d at 251. However, although this Court finds that Plaintiff has conclusorily stated the elements of a conversion claim, in the absence of any particulars about when or where this conversion occurred, the Court cannot evaluate whether the Court has supplemental jurisdiction over this claim.9 9 It is long settled that “[a] plaintiff must establish the court’s jurisdiction with respect to each claim asserted.” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004) (emphasis in original). As discussed above, the Court questions whether Plaintiff has adequately pleaded facts sufficient to establish federal question jurisdiction over her CFAA claim, leaving diversity jurisdiction and supplemental jurisdiction under 28 U.S.C. § 1367 as possible avenues for jurisdiction over her remaining claims. Given the jurisdictional issues discussed above, on the basis of the present complaint, the Court does not recommend finding that supplemental jurisdiction over Plaintiff’s conversion or other state law claims is appropriate without further specifics in an amended complaint that provide a factual basis for this Court’s exercise of subject matter jurisdiction over the case and personal jurisdiction over Defendant Kelsey. The Second Circuit has long observed, “as a general proposition, that if all federal claims are dismissed before trial . . . the state claims should be dismissed as well.” Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (cleaned up). Here, Plaintiff also alleges diversity jurisdiction, but the Court does not find from the face of the complaint that the conversion claim alleges facts sufficient to assert 28 U.S.C. § 1332 due to a lack of specifics as to the amount in controversy as to the claim. In the event Plaintiff is relying on supplemental jurisdiction for the conversion claim on the basis of diversity jurisdiction over her other state law claims, the Court could only exercise such jurisdiction if it finds that the conversion claim is “so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III.” 28 U.S.C. § 1367(a). The Court cannot make such a finding at this time due to the sparse facts included in the complaint. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 26 of 34 PageID #: <pageID>
27 Therefore, the Court is unable to determine whether this claim is properly before this Court or whether Defendant has a meritorious defense to the claim under Enron Oil. See Enron Oil, 10 F.3d at 96. Consequently, the Court respectfully recommends dismissing Plaintiff’s conversion claim, with leave to amend. E. IIED The common law has long recognized torts for outrageous conduct causing severe emotional distress and intentional infliction of emotional harm. See Restatement (Second) of Torts § 46 (2025). To state a claim for intentional infliction of emotional distress, a plaintiff must plausibly allege that a defendant (1) “by extreme and outrageous conduct” (2) “intentionally or recklessly” (3) “cause[d] severe emotional harm to another.” Id. To assess severity, courts often consider whether “the distress inflicted is so severe that no reasonable man could be expected to endure it.” Id. cmt. j.; see also Medcalf v. Walsh, 938 F. Supp. 2d 478, 490 (S.D.N.Y. 2013) (“To qualify as severe emotional distress, the emotional distress suffered by the plaintiff must be so severe that no reasonable person could be expected to endure it.” (quotation marks and alterations omitted)); Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (“The conduct must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’” (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (internal quotation marks omitted)). “As New York’s highest court has observed, the standard for stating a valid claim of intentional infliction of emotional distress is ‘rigorous, and difficult to satisfy.’” Conboy, 241 F.3d at 258 (quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122 (1993)). In addition, “New York courts have held that a claim for damages for intentional infliction of emotional distress is subject to the one-year statute Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 27 of 34 PageID #: <pageID>
28 of limitations in C.P.L.R. Section 215(3).”10 Patterson v. Balsamico, 440 F.3d 104, 112 n.4 (2d Cir. 2006) (collecting cases); see Cabrera v. Quik Park Columbia Garage Corp., No. 00- CV-3576 (JG), 2000 WL 1897348, at *1 (E.D.N.Y. Dec. 18, 2000) (“It is well-established under New York law that a claim of intentional infliction of emotional distress has a one-year statute of limitations.”); see also Noe v. Realty, No. 19-CV-1455 (JHR) (RFT), 2024 WL 5508198, at *18 (S.D.N.Y. July 22, 2024), report and recommendation adopted sub nom. Noe v. Ray Realty, 2025 WL 958407 (S.D.N.Y. Mar. 31, 2025), appeal dismissed, No. 25-1132- cv (2d Cir. June 5, 2025). Plaintiff claims that Defendant’s conduct has caused Plaintiff to suffer “severe emotional harm,” “including trauma related to her ongoing IVF cycle and long-term psychological effects.” Compl., ECF 1, ¶ 33. However, even taking Plaintiff’s allegations as true, they do not rise to the level of severity, as currently pled, to make out a viable claim for intentional infliction of emotional distress in New York. Plaintiff raises multiple allegations against Defendant, including his accessing her Delta Airlines account without her consent, refusing to return her notary stamp, and engaging in a “campaign of harassment,” all of which Plaintiff claims resulted in damages and harm. However, Plaintiff’s allegations fail to provide any details to demonstrate that Defendant’s conduct was “so severe that no reasonable man could be expected to endure it.” Restatement (Second) of Torts § 46 (2025), cmt. j. Additionally, courts are generally “‘reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious 10 As discussed in footnotes 4 and 7, supra, the Court has questions regarding evaluating the statute of limitations for Plaintiff’s claims and whether Defendant may have a meritorious defense to untimely claims. See Enron Oil, 96 F.3d at 96. Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 28 of 34 PageID #: <pageID>
29 campaign of harassment or intimidation.’” Woods v. Sieger, Ross & Aguire, LLC, No. 11- CV-5698 (JFK), 2012 WL 1811628, at *7 (S.D.N.Y. May 18, 2012) (quoting Cohn-Frankel v. United Synagogue of Conservative Judaism, 667 N.Y.S.2d 360, 362 (App. Div. 1st Dep’t 1998)). Although Plaintiff asserts that Defendant “engaged in a campaign of harassment,” she has not pled the content, frequency, or duration of Defendant’s alleged campaign such that this Court can make a determination as to whether Defendant’s actions satisfy this state’s rigorous standard for IIED claims. See, e.g., Conboy, 241 F.3d at 247, 258–59 (affirming dismissal of IIED claim where the plaintiffs alleged that debt collector obtained private information, including their unlisted telephone number, and proceeded to contact them between 30 and 50 times in a month). Moreover, “there is a fair amount of caselaw in New York holding that a lack of medical evidence regarding [a] plaintiff’s emotional distress is fatal to an intentional infliction of emotional distress claim because [the] plaintiff has failed to offer non- speculative proof establishing the ‘severe emotional distress’ element of the claim.” Woods, 2012 WL 1811628, at *8 (collecting cases). Here, Plaintiff offers no specific non- conclusory allegations concerning alleged medical harm, instead asserting that she “has suffered severe emotional harm as a result, including emotional trauma related to her ongoing IVF cycle and long-term psychological effects.” Compl., ECF 1, ¶ 33. Accordingly, even taking Plaintiff’s claims as true, this Court respectfully recommends dismissing Plaintiff’s claim for IIED. F. Tortious Interference with Employment “A plaintiff claiming tortious interference under New York law must establish four elements: 1) a valid contract, 2) knowledge by a third party of the contract, 3) conduct by the third party to intentionally and improperly procure the breach of the Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 29 of 34 PageID #: <pageID>
30 contract, and 4) damage to the plaintiff as a result of the breach.” Siotkas v. LabOne, Inc., 594 F. Supp. 2d 259, 274–75 (E.D.N.Y. 2009) (citing Albert, 239 F.3d at 274). At-will employees generally do not have employment contracts.11 See id. at 275. However, an at- will employee may establish a claim for tortious interference “in certain limited situations” if the employee can establish “that a third party used wrongful means to effect the termination such as fraud, misrepresentation, or threats, that the means used violated a duty owed by the defendant to the plaintiff, or that the defendant acted with malice.” Albert, 239 F.3d at 274 (quotation marks omitted); Siotkas, 594 F. Supp. 2d at 275 (collecting cases); see Jean-Louis v. Am. Airlines, No. 08-CV-3898 (FB), 2010 WL 3023943, at *2 (E.D.N.Y. July 30, 2010) (same). Plaintiff’s complaint does not allege that Defendant maliciously caused Plaintiff to be fired, or what particular adverse employment consequences she experienced as a result of Defendant’s actions.12 See, e.g., Jean-Louis, 2010 WL 3023943, at *2 (denying the 11 The complaint fails to allege the existence of any employment contract between Plaintiff and her employer, Delta. In the absence of allegations that she has a contract of employment, the Court assumes that Plaintiff is an at-will employee. See Coliniatis v. Dimas, 848 F. Supp. 462, 470 (S.D.N.Y. 1994) (collecting cases). However, regardless of the existence of a contract between Plaintiff and her employer, Plaintiff’s tortious interference with employment claim fails on other grounds. 12 Plaintiff’s complaint only claims that Defendant’s alleged actions caused “scrutiny at her workplace” and “placed Plaintiff’s employment in jeopardy and required HR involvement.” Compl., ECF 1, ¶¶ 15, 36. The Court notes that Plaintiff’s default motion papers provide some specificity regarding her alleged employment consequences in a supplemental notice. See Pl.’s Notice, ECF 16, at ECF p. 4 (noting “[e]mployment consequences,” “[r]educed pay and seniority,” “[r]estrictions on her flight benefits,” and “HR investigations,” among other alleged harms); see also id. at ECF pp. 5–7. However, notwithstanding Plaintiff’s pro se status, the Court is limited to consideration of the complaint to determine liability in this default context. See Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 30 of 34 PageID #: <pageID>
31 plaintiff’s motion to add a claim of intentional interference with employment relations as “futile” because the “proposed amended complaint fails to allege that [the defendant] maliciously caused plaintiff to be fired or that [the defendant] threatened or defrauded plaintiff”). Plaintiff simply asserts that “Defendant knowingly interfered with Plaintiff’s employment at Delta Airlines by making false complaints and enlisting others to do so.” Compl., ECF 1, ¶ 35. These allegations, without more, do not establish (1) whether Plaintiff had a contract with Delta with which to interfere; (2) whether Defendant (a) “intentionally and improperly procure[d] the breach of the contract” between Plaintiff and her employer by causing infringement of her contractual rights or (b) caused her to be fired; or (3) how any alleged breach of the contract or employment relationship between Plaintiff and her employer caused “damage to [Plaintiff]” as a result of the breach. Albert, 239 F.3d at 274 (quotation marks omitted). Accordingly, the Court respectfully recommends finding that Plaintiff has failed to adequately plead her claim for tortious interference with employment. Universal Elec., 970 F. Supp. 2d at 119 (noting that courts consider “whether the claims were pleaded in the complaint” in deciding whether to grant a default judgment); J & J Sports Prods., Inc. v. Abdelraouf, No. 18-CV-2547 (ARR) (VMS), 2019 WL 457719, at *4 (E.D.N.Y. Feb. 5, 2019) (finding that the plaintiff’s “assertion that a court may consider documents outside of the pleadings when evaluating a defendant’s liability on a motion for default judgment is plainly contradicted by black-letter law” and that “a default does not . . . excuse any defects in the plaintiff’s pleading” (quotation marks omitted)) (collecting cases). But see Group One Ltd. v. GTE GmbH, 625 F. Supp. 3d 28, 57 n.16 (E.D.N.Y. 2022) (“The Second Circuit has occasionally considered materials outside the default judgment record in determining whether a meritorious defense exists.”). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 31 of 34 PageID #: <pageID>
32 IV. Leave to Replead In light of the foregoing and against the backdrop of Plaintiff’s damages request of $200,000,13 the Court respectfully recommends giving Plaintiff leave to replead. “Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that [s]he has a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quotation marks and citation omitted). “The decision to grant or deny leave to amend is within the trial court’s discretion.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. PVT Ltd., 338 F.R.D. 579, 583 (S.D.N.Y. 2021) (citing Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 330 (1971)). Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, courts “should freely give leave” to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Saravia v. Royal Guard Fence Co., No. 19-CV-2086 (DRH) (SIL), 2020 WL 5231696, at *9 (E.D.N.Y. Sept. 2, 2020) (explaining that parties should generally “be allowed to amend their pleadings . . . unless there is evidence of undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility” 13 The Court notes that Plaintiff seeks $200,000 in damages. Pl.’s Mem. in Supp. Default J., ECF 9-1, at ECF p. 2; cf. Compl., ECF 1, ¶ 1 (asserting that “the matter in controversy exceeds $75,000”). However, because the complaint provides no specifics quantifying Plaintiff’s alleged losses, the Court questions whether the amount in controversy exceeds $75,000 for purposes of federal diversity jurisdiction. See 28 U.S.C. § 1332. But see Pl.’s Notice, ECF 16, at ECF pp. 5–7 (generally detailing Plaintiff’s alleged losses). Nevertheless, as “the sum claimed by the plaintiff controls if the claim is apparently made in good faith” and it is not “apparent, to a legal certainty,” on “the face of the pleadings . . . that the plaintiff cannot recover the amount claimed or . . . that the plaintiff never was entitled to recover that amount,” the Court declines to recommend dismissal for lack of diversity jurisdiction given the recommendation that Plaintiff be permitted to file an amended complaint. Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quotation marks omitted); see Hall v. EarthLink Network, Inc., 396 F.3d 500, 506 (2d Cir. 2005) (“Generally, for purposes of diversity jurisdiction, the amount in controversy is established as of the date of the complaint and is not reevaluated based on post- filing events.”). Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 32 of 34 PageID #: <pageID>
33 (quotation marks omitted)). “If the underlying facts or circumstances relied upon” by the party seeking leave to amend “may be a proper subject of relief,” there is a preference that the party “be afforded an opportunity to test [its] claim on the merits.” United States ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank & Tr. Co. of Chi., 889 F.2d 1248, 1254 (2d Cir. 1989) (quotation marks omitted). Given the liberal standard for the filing of an amended complaint and Plaintiff’s pro se status, the Court respectfully recommends giving Plaintiff leave to file an amended complaint. Further, because the new complaint will replace, not supplement, the prior complaint, “any facts or claims that Plaintiff[] wish[es] to maintain must be included in the amended complaint.” Sanchez v. Miller, No. 20-CV-0620 (CM), 2020 WL 1140843, at *8 (S.D.N.Y. Mar. 6, 2020). Plaintiff is further advised to include specific dates in connection with her allegations. CONCLUSION For the reasons discussed above, the Court respectfully recommends denying Plaintiff’s motion for default judgment. The Court further recommends giving Plaintiff leave to file an amended complaint. * * * * * This report and recommendation will be filed electronically and a copy sent by mail to defaulting Defendant. As a courtesy, the Court also respectfully directs Plaintiff to provide a copy of this report and recommendation to Defendant forthwith and to file proof of same by February 10, 2026. Objections to this report and recommendation must be filed, with a courtesy copy sent to the Honorable LaShann DeArcy Hall at 225 Cadman Plaza East, Brooklyn, New York 11201, within fourteen (14) days of filing. See Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 33 of 34 PageID #: <pageID>
34 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections within the specified time waives the right to appeal both before the district court and appellate courts. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely to a . . . report [and recommendation] operates as a waiver of any further judicial review of the magistrate[ judge’s] decision” (quotation marks omitted)). SO ORDERED. Dated: Brooklyn, New York February 4, 2026 _____________________________________ TARYN A. MERKL UNITED STATES MAGISTRATE JUDGE Case 1:25-cv-01968-LDH-TAM Document 17 Filed 02/04/26 Page 34 of 34 PageID #: <pageID>
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